A jury сonvicted Reggie Booker of one count of conspiring to distribute and to possess with the intent to distribute more than 50 grams of cocaine base known as “crack” in violation of 21 U.S.C. § 841(a)(1) and § 846 and one count of knowingly and intentionally distributing and pоssessing with intent to distribute cocaine base known as “crack” in violation of 21 U.S.C. § 841(a)(1) and 18 U.S.C. § 2. At the sentencing hearing, the district judge found by a preponderance of the evidence that the drugs involved in Booker’s crimes were crack, and applied the Sentencing Guidelines accordingly. The judge then sentenced Booker to two concurrent 292 month sentences under the enhanced sentencing provisions of 21 U.S.C. § 841(b)(1)(A). Booker appeals his sentence, arguing that it does not comрly with Apprendi and contending that the district judge erred when he determined that the drugs at the heart of Booker’s crimes were crack. We affirm.
I. BACKGROUND
Racine County law enforcement suspected that Booker was involved in a drug distribution conspiracy. It began invеstigating and, through an informant,' arranged to make crack cocaine purchases from Booker. Once the deal was negotiated, Booker directed Tyrone McKinney to deliver his drugs, and the transactions frequently occurred in front оf the Prospect Street apartment Booker rented. Working undercover, Detective Keith Thrower participated in two particularly large buys. On March 30, 1999 he bought 28 grams of cocaine base from Booker and McKinney and on April 5, 1999 hе purchased another 81.7 grams. As part of the same investigation, another undercover officer also purchased 4 ounces (113.4 grams) of cocaine base from Booker’s co-conspirator, Montae Hudson.
Police arrеsted Booker, McKinney, and Hudson. McKinney, and Hudson cooperated with the police. Based on information McKinney provided, police retrieved 53.2 grams of cocaine base along with some powder cocaine and mаrijuana from Booker’s Prospect Street apartment. McKinney also described to police how Booker “cooked” crack by microwaving cocaine powder and baking soda. Hudson explained that he acted as a middle man in Booker’s conspiracy, facilitating deals between Booker and buyers interested in cocaine base. Hudson recounted that multiple times between April 1999 and his arrest one month later, he bought cocaine base аs well as powder cocaine to cook into crack. He testified that he purchased a total of 22 ounces (623.7 grams) of cocaine base from Booker.
The government indicted Booker on one count of consрiracy to distribute cocaine base and one count of distributing cocaine base. A jury found Booker guilty on both counts. The government then requested a *822 sentencing enhancement based on Booker’s prior felony drug conviction. Using 21 U.S.C. § 841(b)(1)(A)(iii), a sеntence enhancement for crimes involving more than 50 grams of cocaine base, the judge sentenced Booker to two 292 month sentences, to run concurrently. Booker now appeals his sentence arguing that the district judge did not fulfill thе Apprendi requirements of treating the drug quantity and drug type as elements of Booker’s crimes and submitting the factual questions to the jury, and that he erred when he found at the sentencing hearing, by a preponderance of the evidence, that the drug involved in Booker’s crimes was crack cocaine.
II. Disoussion
A. Apprendi
Apprendi v. New Jersey
holds that factors which subject a defendant to an enhanced penalty, except prior felony convictions, are elements of the crime that must be charged in the indictment, submitted to the jury, and proven beyond a reasonable doubt.
See
21 U.S.C. § 841(b)(1)(C), which establishes the 20 year statutory maximum penalty for Booker’s crimes, creates an exception to the 20 year ceiling:
If any persоn commits [a violation punishable under § 841(b)(1)(C) ] after a prior conviction for a felony drug offense has become final, such person shall be sentenced to a term of imprisonment of not more than 30 years....
The government presented еvidence that Booker was convicted of a felony drug offense in 1992, and
Apprendi
specifically exempts prior felonies from its proof requirements.
See
Even if Booker’s sentences were in derogation of
Apprendi
we would affirm. We review the district judge’s actions for plain error because Booker raises the
Apprendi
issue for the first time on appeal.
See
Fed.R.CRImP. 52(b);
Nance,
1. Drug Quantity
We turn first to Booker’s drug quantity argument. In sentencing Booker, the district judge proceeded under 21 U.S.C. § 841(b)(l)(A)(iii), which is applicable to crimes involving more than 50 grams of cocaine base. This statute allows the judge to levy sentences of not less than 10 years nor more than life imprisonment. The judge’s choice of sentencing provision was entirely appropriate, however, he аlso could have sentenced Booker to 292 months per count using 21 U.S.C. § 841(b)(l)(B)(ni) which authorizes a sentence of not more than 40 years for crimes involving more than 5 grams of cocaine base.
See, e.g., United States v. Robinson,
2. Drug Type
Next, we address Booker’s argument regarding the drug type. 21 U.S.C. § 841 (b)(1)(A)(iii) prescribes enhanced penalties for crimes involving “cocaine base.” In the context of 21 U.S.C. § 841 and the Sentencing Guidelines, “cocaine base” means “crack cocaine.”
See
U.S.S.G. § 2D.1.1;
United States v. Earnest,
Booker is correct that the government’s chemical evaluations identified the drugs generally as cocaine base and not as a specific type of cocaine. But we are aware of only two substances that are classified as cocaine base: crack cocainé and unprocessed, raw cocaine. Significantly, the tests run on Booker’s drugs found non-naturally occurring chemical additives in *824 the cocaine base, showing that the cocaine was not raw, but had been processed. Booker presents no other alternative type of cocaine base besides crack that the drugs could be. By process of elimination, these chemical tests show the drugs to be crack.
Even if the chemical test is inconclusive, such tests are not the only way to рrove drug identity. We have held that the identity of a drug may be proven by evidence besides chemical tests, such as visual identification by persons familiar with the drug.
See United States v. Linton,
B. Crack Guidelines
Booker argues that the judge erred when he calculated Booker’s sentence using the crack category of the Sentencing Guidelines because the government failed to prove by the preponderance of the evidence that Booker’s drugs were crack cocаine. Because we held that a reasonable jury would be compelled to find beyond a reasonable doubt that Booker’s drugs were crack cocaine, we decline to address Booker’s argument further.
See Earnest,
Affirmed.
